Citation Nr: 0305240
Decision Date: 03/20/03 Archive Date: 04/03/03
DOCKET NO. 02-09 888 ) DATE
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On appeal from the
Department of Veterans Affairs Regional Office in Manila, the
Republic of the Philippines
THE ISSUE
Whether the claimant has met the basic eligibility
requirements for U.S. Department of Veterans Affairs (VA)
disability benefits.
ATTORNEY FOR THE BOARD
K. Knight Enferadi, Counsel
INTRODUCTION
This matter comes to the Board of Veterans' Appeals (Board)
from a March 2002 rating decision by the Department of
Veterans Affairs (VA) Manila, Philippines Regional Office
(RO).
FINDINGS OF FACT
1. The RO has provided all required notice and obtained all
relevant evidence necessary for the equitable disposition of
the claimant's appeal.
2. The National Personnel Records Center (NPRC) certified
that the claimant has no valid military service in the U. S.
Armed Forces in the Far East or the Commonwealth Army of the
Philippines or verified guerilla service.
CONCLUSION OF LAW
The claimant's eligibility for VA benefits based on service
is not established. 38 U.S.C.A. § 107 (West 2002); 38 C.F.R.
§ 3.40, 3.41 (2002) (formerly 38 C.F.R. §§ 3.8 and 3.39,
redesignated and amended at 66 Fed. Reg. 66767 (Dec. 27,
2001))..
REASONS AND BASES FOR FINDINGS AND CONCLUSION
At the outset, the Board notes that during the pendency of
this appeal, the Veterans Claims Assistance Act of 2000
(VCAA), Pub. L. No. 106-475, 114 Stat. 2096 (2000) was signed
into law. See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, and
5107 (West 2001).
To implement the provisions of the law, VA promulgated
regulations. 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a)
(2002). The Act and implementing regulations essentially
eliminate the concept of the well-grounded claim.
38 U.S.C.A. § 5107(a); 38 C.F.R. § 3.102.
They also include an enhanced duty on the part of VA to
notify a claimant of the information and evidence needed to
substantiate a claim. 38 U.S.C.A. § 5103; 38 C.F.R.
§ 3.159(b).
In addition, they define the obligation of VA with respect to
its duty to assist the claimant in obtaining evidence.
38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159(c).
Considering the record, the Board finds that the passage of
the VCAA and its implementing regulations does not prevent
the Board from rendering a decision on the appellant's appeal
at this time, as all notification and development action
needed to render a fair decision has, to the extent possible,
been accomplished.
Through the RO determination, Statement of the Case, and
various correspondence from the RO, the appellant has been
notified of the law and regulations governing entitlement to
the benefit he seeks, the evidence which would substantiate
his claim, and the evidence which has been considered in
connection with his appeal.
Thus, the Board finds that the appellant has received
sufficient notice of the information and evidence needed to
support his claim, and provided ample opportunity to submit
information and evidence.
Moreover, because, as explained hereinbelow, there is no
indication whatsoever that there is any existing, potentially
relevant evidence to obtain (and the appellant has been asked
whether there is any such evidence), any failure to fulfill
the statutory and regulatory requirement that VA notify a
claimant what evidence, if any, will be obtained by the
claimant and which evidence, if any, will be retrieved by the
VA, is harmless. See Quartuccio v. Principi, 16 Vet. App.
183 (2002) (addressing the duties imposed by 38 U.S.C.A.
§ 5103(a) and 38 C.F.R. § 3.159).
The Board also finds that all necessary development has been
accomplished. Specifically, the appellant has not submitted
any evidence which would require the RO to re-verify service
with the service department and he has not contended that the
his service was incorrectly verified. Accordingly, there is
no reasonable possibility that any further assistance would
aid in substantiating the claim.
The RO has secured a response from the National Personnel
Records Center (NPRC) for verification of military service.
The claimant has not authorized VA to obtain any additional
evidence. The Board finds that the duty to assist the
claimant with the development of his claim is satisfied.
38 U.S.C.A. § 5103A (West 2002).
Under these circumstances, the Board finds that the appellant
is not prejudiced by the Board's consideration of the claim
at this juncture. See Bernard v. Brown, 4 Vet. App. 384, 394
(1993).
Analysis
In his July 2001 application for benefits, the claimant
indicated that he was entitled to service connection for
pulmonary tuberculosis and impaired hearing. He noted on his
claim form that the onset of his disabilities was April 1942
and December 1941 respectively. The claimant noted that he
served from August 1941 to October 1945 in the U.S. Armed
Forces and from January 1948 to July 1949 in the Philippine
Naval Patrol. The claimant also stated that he was a
prisoner-of-war (POW) from April 1942 to August 1942. In
tandem with his application, the claimant submitted VA Form
10-0048, Former POW Medical History, a Certification from the
U.S. Army indicating the award of a POW medal, and a
Certification from the Assistant Adjutant General dated in
March 1992 as proof of service.
Upon request by the RO to the service department, the NPRC
provided verification on March 2002 that the claimant had no
service as a member of the Philippine Commonwealth Army,
including the recognized guerrillas, in the service of the
U. S. Armed Forces.
Service-connected disability compensation is payable to a
veteran for disability resulting from an injury or disease
incurred or aggravated in active military service. 38
U.S.C.A. § 1110 (West 2002); 38 C.F.R. § 3.303(a) (2002).
Generally, a "veteran" is a person who served in the active
military, naval, or air service, and who was discharged or
released therefrom under conditions other than dishonorable.
38 U.S.C.A. § 101(2); 38 C.F.R. § 3.1(d).
Service as a Philippine Scout, with certain exceptions, is
included for pension, compensation, dependency and indemnity
compensation and burial allowances. Service in the
Commonwealth Army of the Philippines from and after the dates
and hours when called into service of the Armed Forces of the
United States by orders issued from time to time by the
General Officer, U.S. Army, pursuant to the Military Order of
the President of the United States dated July 26, 1941, is
included for compensation benefits, but not for pension
benefits. Service department certified recognized guerrilla
service, and unrecognized guerrilla service under a
recognized commissioned officer (only if the person was a
former member of the United States Armed Forces (including
the Philippine Scouts)), or the Commonwealth Army, is
included for compensation benefits, but not for pension or
burial benefits. 38 U.S.C.A. § 107; 38 C.F.R. § 3.40.
Active service will be the period certified by the service
department. 38 C.F.R. § 3.41.
For the purpose of establishing entitlement to VA benefits,
VA may accept evidence of service submitted by a claimant,
such as a DD Form 214, Certificate of Release or Discharge
from Active Duty, or original Certificate of Discharge,
without verification from the appropriate service department
under the following conditions: (1) The evidence is a
document issued by the service department; (2) the document
contains needed information as to length, time and character
of service; and, (3) in the opinion of VA the document is
genuine and the information contained in it is accurate.
38 C.F.R. § 3.203(a). The United States Court of Appeals for
Veterans Claims (Court) has held that the Secretary has
lawfully promulgated regulations making service department
findings "binding on the VA for purposes of establishing
service in the United States Armed Forces." Manibog v.
Brown, 8 Vet. App. 465 (1996).
In this case, the claimant did not submit service department
evidence, such as a DD Form 214, Certificate of Release or
Discharge from Active Duty, or original Certificate of
Discharge, in support of his claim. Therefore, as noted
above and as required by VA regulation, the RO requested
verification of service from the service department. The
NPRC certified in its response in March 2002 that the
claimant did not have any verified Philippine service for
purposes of establishing eligibility for VA benefits. As
noted above, this finding is binding on VA. 38 C.F.R. §
3.203; Manibog v. Brown, 8 Vet. App. 465.. Moreover, in a
July 2002 Memorandum for File, the service department's
finding that the claimant did not have valid military service
was confirmed. The claimant has provided no further evidence
that would warrant a request for re-certification from the
service department. See Sarmiento v. Brown, 7 Vet. App. 80,
85 (1994).
Accordingly, the Board finds that the eligibility for VA
benefits based on service is not established. 38 U.S.C.A. §
101(2); 38 C.F.R. §§ 3.40, 3.41, 3.203. The appeal is
therefore denied.
ORDER
Eligibility for VA benefits is not demonstrated. The appeal
is denied.
______________________________________
JAMES L. MARCH
Veterans Law Judge, Board of Veterans' Appeals
IMPORTANT NOTICE: We have attached a VA Form 4597 that tells
you what steps you can take if you disagree with our
decision. We are in the process of updating the form to
reflect changes in the law effective on December 27, 2001.
See the Veterans Education and Benefits Expansion Act of
2001, Pub. L. No. 107-103, 115 Stat. 976 (2001). In the
meanwhile, please note these important corrections to the
advice in the form:
? These changes apply to the section entitled "Appeal to
the United States Court of Appeals for Veterans
Claims." (1) A "Notice of Disagreement filed on or
after November 18, 1988" is no longer required to
appeal to the Court. (2) You are no longer required to
file a copy of your Notice of Appeal with VA's General
Counsel.
? In the section entitled "Representation before VA,"
filing a "Notice of Disagreement with respect to the
claim on or after November 18, 1988" is no longer a
condition for an attorney-at-law or a VA accredited
agent to charge you a fee for representing you.